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Won’t Let Us In? – You’re Out

It’s the latest battleground in the ever-expanding war against objectionable conduct by shareholders.   In a decision just handed down, a couple in a Jackson Heights co-op was made to pay the ultimate price (residentially speaking) for their refusal to repair violations in their apartment or to allow the building access to do so or even to install a new intercom system for everyone.

Call them unrepentant non-repairers.  Instead of doing repairs in their apartment required by the proprietary lease, like painting and plastering, they complained that these conditions violated minimum housing standards. They called 311 and HPD, which posted violations against the whole building, and refused to allow anyone else in to fix the mess. They objected to installation of a new intercom system for the entire building, not only denying access but also refusing to divulge their phone number, instead reporting a Housing Maintenance Code Violation based on the non-working intercom in their apartment, which left all shareholders incommunicado.

Finally, the board had enough.  Its five members voted unanimously that the non-repairers had engaged in objectionable conduct, and ultimately terminated their lease.  When the couple wouldn’t go, they brought an action to get them out.

That finally got the attention of the pair, who hadn’t even bothered to attend the board meeting and defend themselves against termination of their lease. We’re not objectionable, they said, we’re being discriminated against because we’re Muslim. Our constitutional rights have been trampled upon, our civil rights violated.

According to Beatrice Lesser, the real estate lawyer who represented the co-op in the matter, the word “harassment” was scrawled in black magic marker across all the notices sent, which were returned unopened.

Only the court didn’t buy their discrimination defense, handing the co-op a victory in order to prevent a single couple from wrecking the quality of life for everyone else.

Your behavior was detrimental to other shareholders. You didn’t maintain your apartment according to your lease. You caused violations to be placed on the building.  You interfered with the running of the building by failing to cooperate in the installation of a new intercom system.  In other words, you were BAD.  (See, How Bad Do You Have To Be?)

Maybe that’s the takeaway for the non-repairers, but what does it mean for the rest of us? Is it just another case of a really rotten neighbor who had to be removed for the greater good of the community?  Or does it represent something more? The traditional remedy for boards denied access to do work in shareholders’ apartments was to get an order to get into the apartment, not one to get the shareholder out – for good.

Then, according to Ms. Lesser, these weren’t your ordinary obstinate owners, but a problem nearly ten years in the making.  “I don’t see the objectionable conduct standard expanding over the globe, and don’t’ think the case stands for that.”

Except maybe in a few isolated instances, predictions of abuse by boards in using this standard haven’t materialized, she said. “I always caution boards not to use the standard lightly.” And with boards, as opposed to courts making the determination, the process is faster and more efficient. She ought to know having successfully done battle on behalf of a Park Avenue co-op with  a litigious litigator who lived there and drove everyone nuts.  She has several new cases in the pipeline.

What will be deemed ‘Objectionable” next is anyone’s guess. 

But for now, bargain hunters take note the building plans to put the apartment on the market. OK, sounds like there’s some work that needs to be done, but then maybe you’ll get a discount for providing your phone number. Just might be a pretty good deal – for the buyer if not for the former owner.

Click here and enter case date and number  to read 76th Street Owners’ Corp. v. Elshiekh, 2010 N.Y. Slip. Op. 51087(U), June 16, 2010, Civ Ct. Bronx Co.

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